Friday, February 24, 2017

The Intelligence and Security Committee has reported back on the New Zealand Intelligence and Security Bill. Its being touted as a victory for oversight, and there's a little bit of that - and in particular stronger political neutrality clauses which do impose legal duties on spy agencies and limit their cooperation with foreign agencies which violate human rights (such as, you would hope, the NSA and GCHQ). But there's also a lot to be concerned about. In particular:

The definition of "national security" has been repealed, meaning that it is suddenly a nebulous, undefined term that (except in the case of issuing an intelligence warrant targeting a kiwi) can mean anything. We know that in the past the SIS have regarded Maori and women's rights movements, and the peace and environmental movements - entirely peaceful and democratic movements - as "threats" to "national security". This invites them to do it again. The clause they deleted invited them to do it too, but it at least nailed it down so that there were some things they clearly couldn't do, and invited the prospect of gutting it later. Now, they'll get to decide what it means in total secrecy.

Spy agencies can still use the "foreign organisation" dodge to target kiwis who are members of Greenpeace, Amnesty International, or similar NGOs.

The Select Committee has inserted a new subpart allowing intelligence agencies to compel the production of "business records" from banks, ISPS and telecommunications companies, including call metadata and IP addresses, but explicitly not "web browsing history". While this effectively duplicates the police production order scheme, there's no judges, and little oversight. The Commissioner of Security Warrants is involved in granting broad approvals to gain these records - basicly saying "SIS can demand call metadata from phone companies whenever they want" - but has no role in overseeing individual demands (except that there is a register, which is more than the police have). So, once the approval is granted - and it is hard to see it ever being refused - the spies can demand such "business data" on anyone. Or, to put it another way: they can spy on Nicky Hager's bank and phone records permanently with absolutely no oversight. They can then pass this information to police, allowing them to effectively sidestep the limited safeguards of the production order regime.

The anti-whistleblower clause is retained, allowing the spies to jail anyone for up to five years if they tell us about their crimes.

So, a lot of work to be done to fix it. Unfortunately Labour collaborated on the bill, so I don't think we'll be seeing any solutions from them. They're fine with having an intelligence state provided they get a turn at signing the warrants. If we want real reform in this area, and real limitations on the powers of spies, we need to look outside the two establishment parties.